By HOWARD FISCHER
PHOENIX -- Coconino County Superior Court
Judge Michael Flournoy is fighting today for his right to
remain on the bench.
Flournoy's attorneys are asking the Arizona Supreme Court
to delay any suspension of the judge while the justices
consider the charges against him.
Gary Stuart, one of his lawyers, said Flournoy is entitled
to make his case, charging prosecutorial misconduct and due
Flournoy's request for a stay also notes that he handles
one-fifth of the court cases in the county, and that to
suspend him would be a burden on litigants and attorneys, as
well as a financial burden on the county. He has submitted a
petition with the names of 32 supporters who oppose the
interim suspension pending a Supreme Court decision.
But the Commission on Judicial Conduct wants Flournoy
suspended immediately, effective today.
The commission voted last month to recommend to the high
court that Flournoy be suspended for 18 months for misconduct.
That recommendation still needs to be reviewed by the
But Keith Stott, executive director of the commission, said
the Arizona Constitution requires a judge to step aside --
albeit with pay -- when that recommendation goes to the
Supreme Court. That occurred Wednesday afternoon, though Chief
Justice Thomas Zlaket was not available to sign the necessary
order of disqualification.
Beyond that, the commission wants Flournoy to begin part of
his unpaid suspension immediately.
Tempe Municipal Judge Louraine Arkfeld, who chairs the
commission, noted that Flournoy voluntarily agreed not to
appeal the group's recommended penalty on two of the five
charges he faced. The commission voted for a six-month
suspension; Arkfeld said Flournoy's waiver of his appeal
rights means there is nothing for the high court to consider
-- and no reason for delay.
Stuart countered that Flournoy agreed only not to challenge
the punishment. He said the judge never gave up his right to
contest the underlying findings on the two charges.
One involves yelling at and threatening attorneys who
appeared in his court. The other stems from a shouting match
in his chambers with Julie Carlson, clerk of superior court,
with Flournoy threatening to have the sheriff throw her in
"What if they have the wrong findings?" Stuart asked. "We
have a right to object to these findings."
Not so, according to Arkfeld.
In the commission's report to the Supreme Court, she
pointed out that, during the March hearings, it was stated on
the record that Flournoy's stipulations on the two charges
means they "are considered proven." Arkfeld said that neither
of the judge's lawyers objected to that statement.
Two other charges resulted in informal discipline against
Flournoy: improper out-of-court conversations with someone
involved in a pending case and making improper comments about
the physical attributes of female attorneys.
The judge fought the fifth charge of tampering with an
official court record. Despite that, the commission said he
was guilty and is recommending an additional 12-month
suspension, to be served after the end of the six-month
Stuart acknowledged that the constitution states a judge
facing a suspension recommendation by the commission is
suspended without pay. He said, though, the Supreme Court has
the power to ignore that provision.
He said the justices allowed a Maricopa County Superior
Court judge to remain on the bench to complete pending cases
while they considered a recommendation to suspend him.
The tampering charge stems from a complaint by Kathryn
Anderson, who was his official court reporter from the time he
took the bench until 1998.
Anderson testified that Flournoy directed that she not
transcribe a part of a transcript of an in-chambers
conversation with lawyers where Flournoy made the comments
about being afraid of a potential juror. The man also had been
a defendant in a criminal case Flournoy was handling.
Flournoy denied tampering with the transcript but admitted
that he told Anderson that, as far as he was concerned, those
comments were "off the record" and should not be transcribed.
The commission concluded that Anderson "is a credible witness
on this issue and (Flournoy) is not."